The Louisiana Third Circuit recently affirmed a trial court discovery ruling that allowed the defendant to design its own e-discovery protocol without input from plaintiffs. In doing so, the Third Circuit bolstered the longstanding principle that trial courts have considerable discretion over discovery issues.
Appellate decisions on e-discovery in Louisiana are rare due to the considerable discretion granted to trial courts on discovery issues; thus, it is worth paying attention when one pops up. The Louisiana Third Circuit recently released such a decision in Acadiana Renal Physicians, A Medical Corp. v. Our Lady of Lourdes Regional Medical Center, Inc., 23-0372 (La. App. 3 Cir. 6/28/23), –So. 3d–, whereby the court affirmed the trial court's discretion to deny the plaintiffs' demand for control over the defendant's e-discovery protocols.
The Third Circuit's opinion in this case is the culmination of a year-and-a-half-long discovery dispute. In February 2022, Plaintiffs served their fourth set of discovery requests that included requests for electronically stored information ("ESI"). The Defendant responded with numerous objections, prompting Plaintiffs to file a Motion to Compel Responses in late June 2022. The trial court granted Plaintiffs' Motion to Compel in September 2022, ordering the Defendant to produce various categories of documents from the fourth set of discovery requests. Following the Motion to Compel, Defendant retained a third-party vendor to harvest potentially responsive documents for production.
In December 2022, Plaintiffs filed a Motion for Discovery Sanctions, alleging that Defendant had failed to obey the trial court's discovery order. The trial court denied the Motion for Sanctions but ordered Defendant to (1) identify to Plaintiffs the search terms and search methods being used to identify responsive documents, and (2) provide written updates to Plaintiffs on the status of discovery every fifteen days. Plaintiffs thereafter appealed this denial, arguing that the trial court had abused its discretion in denying relief and in excluding Plaintiffs from the discovery process by allowing Defendant to use its own search terms and methods for identifying responsive documents.
The Third Circuit began its analysis by identifying that "[t]he trial court has much discretion when choosing the appropriate sanctions" and that it would not overturn the trial court's decision "absent a clear showing that it abused its discretion." In making its decision to deny sanctions, the trial court considered the "seemingly laborious process" of Defendant reviewing over 170,000 documents identified by its third-party vendor and accepted that Defendant's review was "significant and ongoing." The Third Circuit accepted this as evidence that Defendant was attempting to comply with the trial court's discovery orders and that, therefore, the trial court had not abused its discretion in refusing to levy sanctions.
With regard to Defendant's discovery protocols, Plaintiffs argued that allowing Defendant to use its own search terms and methods had enabled it to avoid the timely production of documents; thus, Plaintiffs should be involved in dictating the search terms and methods being used. However, while the Third Circuit "understood Plaintiffs' frustration with the slow pace of the discovery process," the trial court did not abuse its discretion in allowing Defendant to proceed with its own protocols.
Given the discretion afforded to trial courts on discovery matters, the Third Circuit's opinion gives us a rare additional data point on e-discovery jurisprudence in Louisiana. Notably, the opinion indicates that one party's unilateral control over its own e-discovery protocols is not per se insufficient or unreasonable. This is consistent with Sedona Principle 6, which has long recognized that "a responding party is best situated to preserve, search, and produce its own ESI." The Sedona Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018). Furthermore, this opinion ultimately falls in line with the classic rule of discovery in Louisiana: what the trial court says, generally goes.
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